QUICK & SHORT NOTES ON Articles 15 & 16

Notes on Article 15: 15 provides for a specific application of the general principle of equality amongst all persons embodied under 14; accordingly, it can be said to be one of the constitutional species of the genus called as 14. So, the state shall not discriminate between citizens based only on religion, race, caste, sex, place of birth or any of them. Hence, this right is only available to citizens, unlike 14, where the right to equality is available to all persons. Also, the grounds of discrimination can only one amongst those mentioned under 15 (1). On the other hand, 15(3) empowers the state to make special provisions for women and children. This indicates that, 15 (3) acts as a further extended exception to the broad principle of non-discrimination provided by 15 (1), as the state can protect the interests of the women and children (as a separate class of citizens) as against the general citizenry. In addition to this protected status that women and children have been accorded with, under 15(3), some of the DPSPs are also directed for their benefit (see Articles 39 (e), (f), 42, 45). Hence, laws made to provide protective discrimination in favour of children and women as against the rest of the citizenry have been held to be valid by virtue of 15(3): o Section 497, IPC that punishes only males for adultery, and not the women, though, a women can also be equally liable for committing or abetting the offence of adultery: Yusuf Abdul Aziz v. State of Bombay AIR 1954SC 321. o Making special provisions for women, like reservation in public services is constitutionally valid: State of AP v. PB Vijaykumar, AIR 1995 SC1648. o Right to claim maintaince from husband: Mohd. Ahmed Khan vs. Shah Bano Begum & Ors (AIR 1985 SC 945); Danial Latifi v. Union of India (AIR 2001 SC 3262). o Reservation of women in legislative assemblies is constitutionally valid: Dattatraya v. State of Bom., AIR 1953 Bom. 311.

Constitutional Scheme relating to Reservation in Public Services: 16(1) expressly provides for equality of opportunity for all citizens in matters of public employment. In addition to this right under16(1), it is the Art 16(2), that ensures that: No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State. Comparison between 16(2) & 15(1): o The protection given under 16(2) is of a narrow scope, when compared with the protection available under Art 15(1). The reason is that, the application/scope of 16(2) is only restricted to public services, whereas, 15(1) is of a purely general nature.

o But the Art 16(2) provides some additional grounds, i.e. descent & residence apart from the other five grounds set out in Article15(1). o Equal opportunities in public services, is the general rule laid down under Art 15(1) & 16(1), (2). If that is so, then whats reservation all about? Regarding reservations in public services, three major questions emerge: What all categories of citizens can claim reservation? Can we define these categories of citizens? If so, how do we do that? What is the permissible limit to which these categories can we provided with reservations? (Is there any ceiling to reservations?) What all categories of citizens can claim reservation? o Therefore, in addition to the general rule under 15(1), 16(1) & (2), the following exceptions are created in favour of the following class of citizens: For women [art. 15(3)] For SC & ST: Art 15(4) For any backward classes (BCs): Art 16(4) [the expression BCs include the Socially & Educationally Backward Classes (SEBCs) under Art. 15(4)]. Providing reservations in public services always brings a departure from the equality norm, but this is permissible as it is for the benefit of the backward sections. Can we define these categories of citizens? If so, how do we do that? o Yes, we can. Lets see, one by one. SCs & STs: The constitution doesnt define SCs or STs. It is the Art. 341 under which the President is empowered to notify such castes, races or tribes or parts/groups within such castes, races or tribes. So basically, this is purely a state function to determine, what all classes of citizens can be put under the categories of the SCs. With regard to the STs, in the same way, it is again the State (through the President) which can specify any tribes or tribal communities or groups within such tribes/tribal communities as STs under Art 342. As always, all such orders are subject to Judicial Review. 341 makes it clear that SCs need not be castes in the conventional sense. They can even be a plurality of castes or groups or races and may vary from state to state. The SCs & STs as a class of citizens cannot and should not be equated to be restricted within the Hindu fold, as under 341 & 342, its any race/tribe/castes, that can be notified by the Sate as SC/ST, irrespective of the religious affiliation/identity. [ABSK Sangh (Rly) v. UOI, AIR 1981 SC 298]. Backward classes (BCs): Art 16(4) [the expression BCs include the Socially & Educationally Backward Classes (SEBCs) under Art. 15(4)]: The backwardness contemplated by 15(4) is both social &

educational; whereas, 16(4) doesnt contain the qualifying words socially & educationally and takes in SCs/STs and all other backward classes (BCs) of citizens including those who are socially and educationally backward. Thus, the ambit/scope of protection under 16(4) is broader than the one under 15(4). So, classes which do not qualify as SEBCc under 15(4), may qualify as BCs under 16(4). [Indra Sawhney v. UOI, AIR 1993 SC 473(The Mandal Commission Case)]. It was in 1993, in the Mandal Commission Case, that the SC changed its previous stand treating BCs & SEBCs as the same thing (such was the stand of the SC in Balaji v. State of Mysore, AIR1963 SC 649). Regarding the SEBCs, the homogeneity of the classes of citizens is social and educational backwardness, wherein, Caste can be a mere indicator to determine SEBCs. Regarding the BCs, there is no definition given under the constitution. It is only under 340, that the president may appoint a commission to investigate the conditions of BCs. Identification of BCs: The backward class of citizens referred to in Article 16(4) is the socially backward class of citizens whose educational and economic backwardness is on account of their social backwardness. These are simply groups (classes) of citizens, that has nothing to do specifically with caste. Sometimes, a caste by itself may constitute a class, but that doesnt mean that, caste can be the sole criterion to determine BCs. The economic criterion by itself cannot identify a class as backward unless the economic backwardness of the class is on account of its social backwardness. The weaker sections mentioned in Article 46 are a genus of which backward class of citizens mentioned in Article 16(4) constitute a species. 16(4) refers to backward classes which are a part of the weaker sections of the society and it is only for the backward classes who are not adequately represented in the services, and not for all the weaker sections that the reservations in services are provided under 16(4). The Exclusion of Creamy Layer from the BCs: The SC in the Mandal Commission Case made it a precondition to the constitutionality of reservation of the BCs in public services, on the grounds of the propriety of the definition of the BCs as a separate class that deserves protective discrimination by the state. The majority held that while identifying the BCs, the socially advanced persons (i.e. the creamy layer) needs to be excluded. The criterion to determine this Creamy Layer cannot be solely economic, it should mainly be social

advancement. The court directed the UOI to set up a commission within 4 months of the decision. [mandal case] 16(4) is not an exception to 16(1) thereof. It only carves out a section of the society, viz., the backward class of citizens for whom the reservations in services may be kept. The said clause is exhaustive of the reservations of posts in the services so far as the backward class of citizens is concerned. It is not exhaustive of all the reservations in the services that may be kept. The reservations of posts in the services for the other sections of the society can very well be kept under 16(1) as well. [Mandal Commissions Case]. Article 16(4) permits classification of backward classes into backward and more or most backward classes. However, this classification is permitted only on the basis of the degrees of social backwardness and not on the basis of the economic consideration alone. So, class within classes is permissible under 16(4), as such a classification would be necessary to help the more backward classes of citizens, otherwise those BCs who are little more advanced than the more BCs might take away all the seats. But the result of such sib-classification cannot exceed more than 50 %. What is the permissible limit to which these categories can we provided with reservations? (Is there any ceiling to reservations?) o The majority in the Mandal Case held that, the maximum limit of reservation cannot exceed 50%. However, in extra-ordinary situations it may be relaxed in favour of people living in far-flung areas of the country, who because of the particular conditions and characteristics need a different treatment. But in doing so, the court said, extreme caution needs to be exercised. The court relied on the constituent assembly debates, where it was said by Ambedkar that, reservations must alwaysbe for the minority of the seats. moreover, the court observed that, reservation under 16(4), demands adequate representation of the BCs, and not proportionate representation.